Today’s First Amendment Absolutism, which performs regard for all contested speech as equal, that refuses to weigh other interests against any speech, and which adherents espouse as if in possession of eternal and obvious Truth, is of relatively recent vintage.
Hugo Black, the Supreme Court justice most closely identified with First Amendment Absolutism, by his own account, “never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases.” He also distinguished speech from “conduct.” Hence, he supported prohibitions on flag-burning, the wearing of anti-war armbands in high school, protesting on government property and “Fuck the Draft” t-shirts.
Even within the 95-year history of the American Civil Liberties Union — the standard bearer and most influential promoter of Free Speech Absolutism — commitment to the Bill of Rights has varied over time. Three radicals founded the ACLU in 1920, spinning off from an organization that had focused exclusively on defending anti-war protestors and conscientious objectors. In the 20s and 30s, it focused mostly on the free speech rights of artists, workers and communists, and formed a relationship with the NAACP to combat racism.
It took a right turn in the late 30s and in 1940 purged communists sympathetic to Russia from leadership positions. That same year, it defended Henry Ford’s right to distribute anti-union literature against the objections of the National Labor Relations Board. In 1942, the leadership divided over the internment of Japanese Americans and as a result did not oppose it when it first began. In 1950 it declined to defend leftist, Black singer Paul Robeson when the government denied him a passport. In 1954 it purged anti-communists from leadership positions. In 1968 it divided over defending civil disobedience against the Vietnam War.
Despite the organization’s rightward turn during the Cold War, the Skokie case was so far afield of anything the organization had done up to that time, thousands of members created a financial crisis for the organization by withdrawing support. The ACLU we know today emerged stronger than ever from the ashes, one with greater dependence on large grants and gifts and much more willing to make common cause with corporations and fascists.
This checkered history usefully shows that defense of the First Amendment is as bound up with social conditions and politics as the justice system within which civil libertarians mostly operate. Every day, the state stomps on the civil liberties of millions of people. The Bill of Rights is no more robustly defended in a hate crimes case than a case of anarchists harassed by local law enforcement or a latino man railroaded into jail after capturing lethal racist police brutality on video. First Amendment absolutists are at liberty to focus on any subset of infringements they want.
The hard line First Amendment Absolutists say they draw is simply a lie. Like everyone else, they readily accept everyday infringements on speech, which not coincidentally, are prohibitions on speech that is likely to afflict them personally. Hence they see the obvious benefit of prohibiting defamation of individuals, but any limit on Pam Gellar-style libels against whole groups puts us on the slippery slope to fascism.
While they would like you to think it’s principle that puts them in bed with hate-mongers and corporations, in fact, just as the anti-communists of the 1940s ACLU reflected their time, so too today’s absolutists reflect the diminishing influence of principled leftists and the increasing influence of libertarians and neoliberals. They choose their battles in accordance with their interests. This phase in First Amendment Absolutism needn’t be more permanent than the others, and the shorter it is the better.
Finally, it’s a mistake to equate First Amendment Absolutism with a strong commitment to free speech as a general principle. Most absolutists are on very agreeable terms with the complete absence of speech rights in the private workplaces where people spend most of their days. As described above, their focus in the private sector is on the First Amendment rights of corporations, to the detriment of workers and the public. They wring their hands a bit over things like Twitter and Facebook censorship, but only as “prudential matter[s]” about which we can do very little. They only hyperventilate when a government tells Twitter or Facebook what to censor.
Next: 3. Magic Paper Theory
- Frat Boys, Redskins and Ramsey Orta
- There’s No Such Thing as First Amendment Absolutism
- Magic Paper Theory
- The White Supremacy Difference
- Precedent Hardly Matters
- Putting the Libertarian in Civil Libertarian
- Free Ramsey Orta